HOUSING BENEFIT
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Who is entitled to receive it?
Circumstances in which a person is to be treated as liable to make payments in respect of a dwelling
Housing Benefit Start Dates
Rent Payable
What housing benefit does not cover
Housing Benefit - Decision
Application for Housing Benefit
Benefit Period
Local Reference Rent
Maximum Rent
Appropriate Rent
Exceptions to the Rules
The 13 Week Rule
Pre-Tenancy Determinations
Vulnerable Groups
Notification of Decisions
Under twenty-fives
Payment of Housing Benefit
Circumstances in which payment is made to the landlord
Tenant Vacates the Property
Payment on two homes at the same time
Plymouth Council V Gigg
Overpayment to Landlords
From whom can Rent Payments be Recovered?
Notice of Overpayment - Action Landlords can Take
Transitional Support Scheme for Supported Accommodation
Payment on Account
Who is entitled to receive it?
Under the Social Security and Benefits Act (1992) a person is entitled to housing benefit if:
- He is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home
- He has either no income or an income that after applicable deductions entitles him to assistance with paying his rent.
- He is unemployed, self employed, employed, a pensioner or in any other similar situation where assistance is needed to help pay the rent
Circumstances in which a person is to be treated as not liable to make payments in respect of a dwelling
Under Regulation 7 of the Housing Benefit (General) Regulations 1987:
The following persons shall be treated as if they were not liable to make payments in respect of a dwelling:
a) a person who resides with the person to whom he is liable to make payments in respect of the dwelling and either:
that person is a close relative of his or his partner, or
the tenancy or other agreement between them is other than on a commercial basis
b) a person whose liability to make payment in respect of the dwelling appears to the appropriate authority to have been created to take advantage of the housing benefit scheme except someone who was, for any period within eight weeks prior to the creation of the agreement giving rise to the liability to make such payments, otherwise liable to make payments in rent in respect of the same dwelling ……..
Circumstances in which a person is to be treated as liable to make payments in respect of a dwelling
Under Regulation 6 of the Housing Benefit (General) Regulations (1987) the following applies:
Subject to regulation 7 (see above), the following persons shall be treated as if they were liable to make payments in respect of a dwelling:
- person who is liable to make payments
- a person who is a partner of the person to whom sub-paragraph (a) applies
- a person who has to make payments if he is to continue to live in the home because the person liable to make them is not doing so and either:
a) he was formerly a partner of the person who is liable, or
b) he is some other person whom it is reasonable to treat as liable to make payments:
· a person whose liability to make such payments is waived by his landlord as reasonable compensation in return for works actually carried out by the tenant in carrying out reasonable repairs or redecoration which the landlord would otherwise have carried out or would be required to carry out, but this sub-paragraph shall apply only for a maximum of 8 benefit weeks in respect of any one waiver of liability …….
Housing Benefit Start Dates
1. Existing tenant ceases work
He will get paid from the Monday following the date of his claim.
If the claimant has no income and can prove hardship, then he can be paid for the first week of that claim (Reg. 61)
Although it may take a while to process the application, any loss of housing benefit for the first week of the claim will be made up at the end of the benefit period or when the tenant leaves that property (Reg. 65 (2))
2. Tenant moves in who is working and is already getting housing benefit at a previous address)
The tenant will be entitled to housing benefit for the week he moved in providing that the housing benefit application form is received by the local authority that week. If the form is not received that week, or in any subsequent week, then the tenant will be paid from the Monday following the receipt of the form.
3. Person moves in who is already in receipt of Job Seekers Allowance, Invalidity Benefit or any other state benefit
The tenant has four weeks to submit his claim, which will be backdated to the first week of occupation. He will get paid from the Monday prior to the move-in date if his rent is payable weekly. If the rent is payable monthly then he will get paid from the day he moves in.
Note that some authorities weekly periods may vary, but will be balanced out at the end of the benefit periods.
Extended payment of Housing Benefit
A claimant may continue to receive his existing rate of housing benefit for an extra four weeks after his income support or income-based job seekers allowance stops due to either himself or his partner starting work or receiving an increase in their income. To get this extra help the claimant must be:
- Aged under 60 years on the day after the income based job seekers allowance stops
- Under 60 years old on the day their income support stops And
- Have been unemployed for at least six months Or
- Getting Income Support as a lone parent
From 2nd July 2001 the need to complete an application form was withdrawn
Rent Payable
Weekly
He gets paid from the first week of occupation even if the claim starts from the Sunday of that week. This means that if he moves in on any day up to and including Sunday, he gets paid from the previous Monday.
His entitlement to housing benefit does not cease on the day that he moves out. Even if he moves out on a Monday, housing benefit must be paid up until the following Sunday (note that again this may vary between authrities)
Monthly
If he moves in on a Wednesday, his rent liability for housing benefit purposes commences on that day, and so he will get paid from then onwards.
His entitlement to housing benefit usually ceases on the day he moves out.
What housing benefit does not cover
- The cost of fuel (unless it relates to a communal area)
- The cost of meals included in the rent
- Water and sewerage charges
- Service charges for things like personal laundry and household cleaning
- Ground rent and service charges for a property if the lease was originally for more than 21 years.
Housing Benefit - Decision
The local authority of the area in which he resides determines the amount of housing benefit to be paid to an applicant. Factors such as the claimants income, savings and dependants will be taken into account.
Application for Housing Benefit
If someone is making a claim for Income Support or income-based Job Seekers Allowance, housing benefit can be claimed at the same time. The Social Security Office will pass the form on to their local council. This includes claims via Gateway Offices.
Otherwise housing benefit can be claimed directly from the local council.
Housing benefit can be claimed up to 13 weeks prior to the claimant being entitled to receive it. However claims cannot usually be backdated apart from exceptional circumstances.
Authorities must make a determination of housing benefit within 14 days of receiving a correctly completed application form and have a duty to inform 'all persons affected' of the decision. This will include a landlord or agent where the payment is made directly to them.
The council will require information from a private tenant on the type of accommodation that they are either living in, or are proposing to live in. The landlord should normally assist them to complete the necessary forms, and give an authorising signature where appropriate.
However tenants are not always required to disclose to their landlord that they are applying for housing benefit, and local councils may be happy to accept rent books or the original copy of a tenancy agreement as sufficient proof of rent paid.
Under the new verification framework claimants will be subjected to rigorous checks on identity and addresses. They will have to produce original documents (not photocopies) to confirm their identity, evidence of residency, all savings and income.
Local authorities will now visit claimants more regularly to confirm that details of their claim are correct.
Benefit Period
When the tenant moves into a property and is awarded housing benefit, the award is made for a period of time known as the 'benefit period' (up to 60 weeks depending on the risk factor of each claim).
Local Reference Rent
In October 1999, the Rent Officer became the Rent Service and a number of changes were brought in. The purpose of these changes was to make the work of the department more transparent to landlords.
The Rent Service will determine an average rent for properties of similar size and offering the same sort of facilities, in each locality. Their calculations are based on all rents in the area;(including properties housing asylum seekers) not just those paid by tenants on housing benefit. Rents that are exceptionally high or low are excluded from the calculation.
The mid-range or average level of rent is known as the local reference rent. Housing benefit exceeding the local reference rent will not usually be paid to a tenant even if they are paying more to their landlord (see maximum rent)
Maximum Rent
The amount of housing benefit a claimant receives may not necessarily be the full amount of rent that they pay to their landlord.
Housing benefit may be restricted if the Rent Service feels that the rent paid is unreasonably high, or that the home is too large for the claimants needs taking into account their personal circumstances (Housing Benefit Regulation 11)
It may also be restricted if the rent a tenant pays for their particular home is greater than the average rent for other similar size dwellings in the area (local reference rent). In this case the Rent Service will calculate the housing benefit payable either by determining the level of rent that the landlord could reasonably expect to obtain for the property, or by assessing the level of rent that would be paid on a property appropriate to the claimants personal needs.
Additionally housing benefit will only cover eligible rent i.e. the amount a tenant pays just for occupying their home. This excluded the costs of water, fuel, some service charges etc. (Housing Benefit Regulation 10)
Appropriate Rent
The Rent Service will look at the rent for a particular home and determine whether it is reasonable. If it is, then the appropriate rent will be the amount that a claimant is actually paying. If it is considered to be unreasonable, then the council will only pay a portion of it (i.e. the maximum rent)
Exceptions to the Rules
These rules do not affect claimants if:
- They rent from a registered housing association (unless its considered that the house is too big for them)
- They started renting their present home before 15 January 1989
They may affect claimants if:
- Claimants who are making a claim in their own right because their partner who formerly claimed for both of them has moved away, died or gone to prison
- The landlord asks a tenant to move out while essential repairs or maintenance work is carried out
- The landlord is a non-metropolitan county council in England, a housing association, a registered charity or a voluntary organisation which provided the claimant with some level of care, support or supervision
- The claimant lives in a hostel that is funded by the government by way of a grant under section 30 of the Jobseekers Act (1995)
The 13 Week Rule
The maximum rent rules can be deferred for 13 weeks (from the first day of entitlement to benefit) if:
- when a claimant originally moved into their home, they could afford the rent
- they have not received housing benefit in the last 52 weeks.
During this 13 week period the Rent Service will determine the appropriate rent that will be paid through housing benefit after this period has expired
Pre-Tenancy Determinations
If a claimant has not yet moved into a private property, either a claimant or a landlord can request a pre-tenancy determination to find out the maximum rent that the Housing Benefit dept. would consider appropriate to pay.
This will be conducted by the Rent Service, however housing benefit will not always cover the maximum rent, and so the amount of the determination is not a guarantee of how much the claimant will receive in housing benefit.
The landlord will have to sign to say that the Rent Service can look at the property, and once a decision has been reached, the landlord, claimant and Housing Benefit dept will all be notified. The determination is valid for 12 months from its date of issue, so long as the terms of the tenancy remain the same.
Vulnerable Groups
For cases assessed under current rules (effective from January 1996), unless suitable alternative accommodation is available, the council will not restrict the maximum rent that it will pay for a tenants accommodation under the following circumstances:
If a tenant, dependent children living with a tenant, or relatives of a tenants partner are:
- Aged 60 or older
- Sick or disabled
- Looking after a child
In these cases a council must consider whether moving house would have a bad effect on a tenants chances of keeping a job or the education of the children being looked after in that home.
Notification of Decisions
Under Regulation 77 of the Housing Benefit (General) Regulations 1987 an authority shall notify all 'persons affected' by a decision made by it under these regulations. This should be done within 14 days of that determination or as soon as is reasonably practicable thereafter.
A 'person affected' may be a tenant and/or landlord. This is important as only a person affected has any rights to seek reviews.
A landlord is a person affected where a local authority seeks to recover overpayment from a landlord and in certain other circumstances. Also the case of R V Birmingham City Council ex parte Connolly and another (March 1994) confirmed that a decision on rent payments made a landlord a 'person affected' in that it gave them the right to receive direct payments, and the obligation to notify the council Regulation 75 (of the Social Security Administration Act 1992) if the tenant left the property.
Under twenty-fives
Amended rules were introduced on 2nd October 2001 that affect the amount of housing benefit available to people under 25 years of age, single and living in private sector rented accommodation. This is known as the Single Room Rent.
The Rent Service will determine the local reference rent for the property that the claimant is living in and will then decide if the rent being asked by the landlord is reasonable. In addition the Rent Service will also determine the average cost of renting a single non-self contained room in the locality; (the Single Room rent). If the Single Room rent is lower than the local reference rent then this is the amount used to calculate housing benefit.
The criteria for single room rents are that under the assured tenancy or license agreement, the tenant:
- Has the exclusive use of one bedroom
- Does not have the use of any other bedroom or room suitable for living in
- Shares the use of a toilet and Kitchen (i.e. does not have exclusive use of any facilities for cooking food)
Payment of Housing Benefit
From 7 October 1996, housing benefit is paid in arrears to all private rented sector tenants who make a new claim or change address.
If direct payment is made to a landlord, it will be made four-weekly in arrears.
Some claimants who have remained in their accommodation since before 7th October 1996 still qualify for the system whereby payments are made 2 weeks in advance.
Circumstances in which payment is made to the landlord
A payment of rent allowance shall be made to a landlord to whom rent is payable by the person entitled to that allowance
- Where under regulations made under the Social Security Administration Act (1992) an amount of income support (or a jobseekers allowance) payable to the claimant or his partner is being paid direct to the landlord
- Where the above paragraph does not apply and the person is in arrears of an amount equivalent to 8 weeks or more of the amount he is liable to pay his landlord as rent, except where it is in the overriding interest of the tenant not to make payments direct to the landlord.
Payments may be made to landlords (under regulation 94 (1):
- When the claimant has requested this in writing
- The claimant has left the dwelling and a residual payment is outstanding
Payments may be made to landlords under regulation 94 (1a)
- When the claimants first payment of benefit may encourage him /her to abscond with the rent allowance without paying their landlord (ref. Social Security Dept. Report: The Governments expenditure plans, 1996-7 to 1009-9, HMSO March 1996 page 40)
Competent best value authorities do this in the form of an instrument of payment - i.e. a cheque posted to the claimant but made payable to the landlord.
Tenant Vacates the Property
Notice:
Under section 5 of the Protection from Eviction Act (1977) tenants are required to give their landlord four weeks written notice if they wish to surrender their tenancy.
Where a tenant is in a fixed term tenancy, a notice of surrender given by a tenant cannot take effect earlier than the last day of the tenancy
Payment on two homes at the same time
Under Regulation 5.5 (d) of the Housing Benefit (General) Regulations 1987:
' Where a person is liable to make payments in respect of two (but mot more than two) dwellings, he shall be treated as occupying both dwellings as his home only in the case where a person HAS MOVED into a new dwelling occupied as the home, except where paragraph 4 applies (temporary accommodation, essential repairs etc.) for a period of not exceeding four benefit weeks if his liability to make payments in respect of two dwellings IS unavoidable.
Therefore for a period up to four weeks, benefit will be paid for both properties.
Plymouth Council V Gigg
The Court of Appeal has clarified the meaning of REGULATION 5.5 (d).
When a tenant, in receipt of housing benefit, vacates a tenancy leaving a continuing unavoidable liability for payment of rent at that address (either because no notice was given or the tenant left part way through a fixed term tenancy), the local authority will be required to continue paying the housing benefit for that tenancy for up to four weeks after that date of vacation if:
- The tenant incurs a dual liability (by taking another tenancy right away)
- The tenant remains in receipt of some state benefit
- These dual liabilities are unavoidable
- The tenant remains entitled to housing benefit
Other circumstances in which liability to pay rent on two homes may be deemed as unavoidable are as follows:
- Where a tenant has had to leave their home due to threat of violence in the home
- Where there is a couple residing in a property and one of them has to live away
- Where the claimants family is large and cannot be housed in one large local authority property
- Where a disabled tenant has to move out whilst their home is adapted for their requirements
Overpayment to Landlords
A council may decide that it has paid out too much housing benefit to a claimant and seek to recover the overpayment from the landlord. However a landlord has the right to know the reasons for the overpayment being requested and the circumstances leading up to an overpayment being made. He also has the right to dispute the amount.
Factors that a local authority will consider when determining an overpayment are as follows:
- Why the overpayment was made
- Is the entire amount recoverable? (usually it is unless the authority has made an error)
- What amount are they going to recover and from whom?
- Note that case law has shown that a local authority must follow all the laid down procedures correctly for any court action to succeed. It is therefore very important that landlords challenge any procedures initiated by local authorities that they believe to be incorrect, as procedural or document errors may mean that a court will favour the landlord. Note that from October 2001, once a landlord notifies the benefit office of a change of circumstances, no overpayment can be recovered after that date.
From whom can Rent Payments be Recovered?
Under Regulation 101, with the exceptions of payments made in error to which the recipient would have no reasonable knowledge, a recoverable overpayment shall be recoverable:
Where the overpayment was in consequence of a misrepresentation or failure to disclose a material fact (whether fraudulent or otherwise), the person (or anyone on behalf of them) to whom a payment of housing benefit was made, the person who misrepresented or failed to disclose that material fact, or in any case, the claimant.
Notice of Overpayment - Action Landlords can Take
Providing that he is 'the person affected', a landlord can request a 'statement of reasons'. This must be in writing and signed by himself as the 'person affected'.
On receipt of the detailed statement of overpayment, if a landlord still disputes the legitimacy of the overpayment being claimed, he can request a reconsideration. The request must be made in writing within 4 weeks of the receipt of the letter.
If the landlord then disagrees with the outcome of the reconsideration, he can request an appeal to an independent tribunal. This must be in writing within 28 days of the receipt of the outcome of the reconsideration, and again should be signed by the 'person affected'. Alternatively landlords can request an appeal to an independent tribunal within four weeks of the decision letter.
Transitional Support Scheme for Supported Accommodation
From April 2000, supported and sheltered housing providers will be required to break down the charges that they make to their residents to separate the 'rent' from the 'support service charge'. The support charges will also have to be split between those that relate to the accommodation and those that relate purely to support.
All these elements will continue to be eligible for housing benefit up to April 2003. From then on, the support element will transfer over to the new Supporting People Fund, which will be administered by the Housing Dept. and Social Services in conjunction with the Probation Service.
The transition scheme means that the Benefit Service must review all claims for supported housing schemes to ensure that support charges are calculated under the Transitional Scheme in time for April 2003.
Payment on Account
Under regulation 91 (1) of the Housing Benefit (general) regulations 1987 there is a mandatory requirement to make a 'reasonable' payment on account within 14 days if:
a) The authority is unable to make a decision on the amount of benefit to be paid within 14 days of receipt of a claim and
b) Such inability is not due to the claimants failure to provide information, evidence or documents (which has been requested by the authority in writing) without good cause
